By Joseph Hunt
In a landmark decision on workplace discrimination, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and transgender status. The vote was 6-3, with Justice Gorsuch writing the majority opinion, which was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.
The question before the Court was the meaning of Title VII’s prohibition of discrimination “because of sex” in the context of discrimination based on sexual orientation and gender identity. The Court took a surprisingly textual approach, assuming, at least for argument’s sake, that “sex” in and of itself means the biological distinction between male and female (as “sex” may have been interpreted when the law was enacted).
The Court ruled that when an employer takes an adverse action against an employee because of the employee’s sexual orientation or transgender status, the action is, at least in part, because of the individual’s sex. Thus, an employer that discriminates against a homosexual or transgender employee necessarily intends to discriminate against the employee because of sex. Justice Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The opinion emphasizes that Title VII is focused on individual discrimination. Even if an employer’s goal is to forbid all homosexual or transgender employees (i.e., treating groups of males and females equally), the result is to intentionally treat an individual employee worse based in part on the individual’s sex. In such circumstances, “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The decision, Bostock v. Clayton County, Georgia, No. 17-1618 (June 15, 2020), is of utter and breathtaking importance to Title VII jurisprudence. It also demonstrates that unexpected applications of Title VII continue to emerge since its passing. And, as the dissents indicate, the meaning and scope of Title VII will continue to be bitterly contested.